Simple, yet not necessarily obvious

Often in life, the simple ideas are the best. Time after time such simple inventions revolutionise the world but yet, although with hindsight they appear obvious, it takes an innovator's vision to bring these ideas to market.

Often in life, it seems that the simple ideas are the best. Time after time such simple inventions revolutionise the world but yet, although with hindsight they appear obvious, it takes an innovator's vision to bring these ideas to market.

An example of such an invention is a device which cuts the weight of washing machines by a third, thereby saving fuel in transport and reducing both carbon emissions and back injuries. The new invention responsible for such benefits is a sealable plastic container.  Such containers are placed in a washing machine and filled with water once the machine is in place and act as direct replacements for the 25kg of concrete traditionally built into washing machines to stop the machine moving whilst on a spin cycle.  It is estimated that these innovative plastic containers could save around 44,625 tonnes of carbon dioxide emissions a year.

Such an invention highlights that even a simple product is not always obvious and brings to mind the following questions:

1. what are the pros and cons of applying for a patent for such products; and
2. are there any additional issues to be considered where an invention subsequently appears to be "obvious"?

Pros and cons of patent protection

Obtaining a patent can have many benefits, not least that once granted, the patentee owns the intellectual property in the patented invention and can control how it is used. This gives the patentee an exclusive right to this invention during the lifetime of the patent and others cannot manufacture, reproduce, sell or in any way put the invention to use without the patentee's permission.  These exclusive rights also mean that patents can be valuable assets for businesses and they can represent a source of income as patent rights can be sold or licensed for royalty payments.

"Obvious" inventions

A particular issue in a situation such as this case study - the sealable plastic container for washing machines - is the potential for any patent application or granted patent to be attacked due to obviousness. In order to have a patent granted, four criteria must be met:

1. the invention must be new;
2. the invention must involve an inventive step (i.e. not be obvious);
3. the invention must be capable of industrial application; and
4. the invention must not fall into an excluded class.

The second category is potentially problematic in situations such as this case study. It is perhaps easy now to say "what an obvious idea", but that is with the knowledge of the idea. It is critical to distinguish such hindsight obviousness from the question of whether the idea was obvious at the time; it is only the latter that is relevant from a patenting perspective. If something is very obvious with hindsight, there is a risk this could lead to a prejudice that it was obvious at the time. Judges and patent examiners, however, are generally alert to such prejudice. In any event, the often used retort in such circumstances is "if it is so obvious, why was it not done before?" In the absence of any obstruction preventing it from being done before (technical constraints for example), that can be a powerful argument, especially if the idea goes on to enjoy significant commercial success, which is an indicator that the world was waiting for the idea.

The key question is whether the idea would have been obvious to an expert in the relevant field at the date the patent was applied for.

Comment

It is up to any potential patentee to make the correct commercial decision by weighing up the benefits of having exclusive rights over an invention versus the cost and time of obtaining and defending a patent. In the patent application phase in situations such as in this case study where the idea is so simple, one can anticipate debate over this question of whether the idea was obvious at the time of filing the patent application.

For the devisers of the sealable plastic containers for washing machines, the benefits of such patent protection seemingly outweigh the potentially hurdles. The product design company behind the device, Tochi Tech Ltd, applied for a UK patent for "Washing machine counterweights" on 8 February 2017 and this is still currently pending.  We will keep an eye on how this progresses; watch this space for more news!

With thanks to trainee Amelia Thomson, co-author of this article.